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The Housing Benefit (General) Regulations 1987

Type Statutory-Instrument

Publication 1987-11-20

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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Made: 20th November 1987

Coming into force

Now therefore the Secretary of State for Social Services in exercise of the powers conferred upon him by sections 20(1)(c), (8), (11) and (12), 21(5), (6)(b) and (7), 22, 28(2) and (5), 29, 51(1)(a) to (c), (g), (h), (k) to (m), (n), (q) to (u) and 84(1) of the Social Security Act 1986[^f00001] and section 166(1) to (3A) of the Social Security Act 1975[^f00002] and of all other powers enabling him in that behalf, after consultation with organisations appearing to him to be representative of authorities concerned[^f00003], by this instrument, which is made before the end of a period of 12 months from the commencement of the enactments under which it is made, hereby makes the following Regulations–

PART I — GENERAL

Citation and commencement

1

(1) These Regulations may be cited as the Housing Benefit (General) Regulations 1987 and shall come into force

(a) in any case to which paragraph (2)(a) or (b) applies, on 1st April 1988, and

(b) in any other case, on 4th April 1988.

(2) This paragraph applies in any case where–

(a) rent is payable at intervals of one month or any other interval which is not a week or a multiple thereof; or

(b) payments by way of rates are not made together with payments of rent at weekly intervals or multiples thereof.

Interpretation

2

(1) In these Regulations, unless the context otherwise requires–

“the Act” means the Social Security Act 1986[^f00004];

“appropriate DHSS office” means an office of the Department of Health and Social Security which is normally open to the public for the receipt of claims for income support and includes an office of the Department of Employment which is normally open to the public for the receipt of claims for unemployment benefit;

“assessment period” means such period as is prescribed in regulations 22 to 24 over which income falls to be calculated;

“attendance allowance” means:– an attendance allowance under section 35 of the Social Security Act[^f00005]; an increase of disablement pension under section 61 of that Act; a payment under regulations made in exercise of the power conferred by section 159(3)(b) of that Act; an increase of an allowance which is payable in respect of constant attendance under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975[^f00006]; a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983[^f00007] or any analogous payment; or any payment based on need for attendance which is paid as part of a war disablement pension;

“benefit period” has the meaning given to it in regulation 66;

“benefit week” means a period of 7 consecutive days commencing upon a Monday and ending on a Sunday;

“boarder” means a person who pays a charge for his accommodation and at least some cooked or prepared meals which are both prepared and consumed in that accommodation or associated premises;

“child” means a person under the age of 16;

“claim” means a claim for housing benefit;

“claimant” means a person claiming housing benefit;

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or the spouse of any of the preceding persons or, if that person is one of an unmarried couple, the other member of that couple;

“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance Fund or to a Departmental Expenditure Vote to which payments of benefit under the Act, the Social Security Act or the Child Benefit Act 1975[^f00008] are charged;

“co-ownership scheme” means a scheme under which the dwelling is let by a housing association and the tenant, or his personal representative, will, under the terms of the tenancy agreement or of the agreement under which he became a member of the association, be entitled, on his ceasing to be a member and subject to any conditions stated in either agreement, to a sum calculated by reference directly or indirectly to the value of the dwelling;

“Crown tenant” means a person who occupies a dwelling under a tenancy or licence where the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department, except (in the case of an interest belonging to Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners;

“designated office” means the office designated by the appropriate authority, by way of notice upon a form approved by them for the purpose of claiming housing benefit, for the receipt of claims to housing benefit;

“earnings” has the meaning prescribed in regulation 28 or, as the case may be, 30;

“eligible rates” is to be construed in accordance with regulation 9;

“eligible rent” is to be construed in accordance with regulation 10;

“employed earner” is to be construed in accordance with section 2(1)(a) of the Social Security Act;

“family” has the meaning assigned to it by section 20(11) of the Act;

“housing association” has the meaning assigned to it by section 1(1) of the Housing Associations Act 1985[^f00009];

“invalid carriage or other vehicle” means a vehicle propelled by petrol engine or by electric power supplied for use on the road and to be controlled by the occupant;

“lone parent” means a person who is not a partner and who is responsible for and a member of the same household as a child or young person;

“long tenancy” means a tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture (or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy;

“married couple” has the meaning assigned to it by section 20(11) of the Act;

“net earnings” means such earnings as are calculated in accordance with regulation 29;

“net profit” means such profit as is calculated in accordance with regulation 31;

“non-dependant” has the meaning prescribed in regulation 3;

“non-dependant deduction” means a deduction that is to be made under regulation 63;

“occupational pension” means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;

“owner” means:– in relation to a dwelling in England and Wales, the person who, otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners; in relation to a dwelling in Scotland, the proprietor under udal tenure or the proprietor of the dominion utile or the tenant’s or the lessee’s interest in a long tenancy, a kindly tenancy, a lease registered or registerable under the Registration of Leases (Scotland) Act 1857[^f00010] or the Land Registration (Scotland) Act 1979[^f00011] or a tenant-at-will as defined in section 20(8) of that Act of 1979; “partner” means:– where a claimant is a member of a married or unmarried couple, the other member of that couple; or where a claimant is polygamously married to two or more members of his household, any such member; “payment” includes part of a payment;

“person affected” means any person (including the appropriate authority) whose rights, duties or obligations are affected by a determination, whether or not on review, or by a decision on further review;

“person on income support” means a person in receipt of income support;

“policy of life insurance” means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;

“polygamous marriage” means any marriage where there is more than one spouse and the ceremony of marriage as between the spouses took place under the law of a country which permits polygamy;

“rateable unit” means:– in relation to England and Wales a hereditament as defined in section 115(1) of the General Rate Act 1967[^f00012]; in relation to Scotland, lands and heritages entered on the valuation roll; “rates” has the same meaning as in section 84(1) of the Act except that in relation to Scotland it does not include domestic water rate within the meaning of section 39 of the Water (Scotland) Act 1980[^f00013];

“relative” means a close relative, grandparent, grandchild, uncle, aunt, nephew or niece;

“remunerative work” has the meaning prescribed in regulation 4;

“rent” includes all those payments in respect of a dwelling specified in regulation 10(1);

“self-employed earner” is to be construed in accordance with section 2(1)(b) of the Social Security Act;

“shared ownership tenancy” means:– in relation to England and Wales, a tenancy granted on payment of a premium calculated by reference to a percentage of the value of the dwelling or the cost of providing it; in relation to Scotland, an agreement by virtue of which the tenant of a dwelling of which he and the landlord are joint owners is the tenant in respect of the landlord’s interest in the dwelling or by virtue of which the tenant has the right to purchase the dwelling or the whole or part of the landlord’s interest therein; “single claimant” means a claimant who neither has a partner nor is a lone parent;

“Social Security Act” means the Social Security Act 1975[^f00014];

“student” has the meaning prescribed in regulation 46;

“unmarried couple” has the meaning assigned to it by section 20(11) of the Act;

“year of assessment” has the meaning prescribed in section 526(5) of the Income and Corporation Taxes Act 1970[^f00015];

“young person” has the meaning prescribed in regulation 13(1).

(2) In these Regulations a reference to the appropriate authority in respect of any dwelling is a reference to the appropriate authority for the purposes of section 28 of the Act.

(3) References in these Regulations to a person who is liable to make payments shall include references to a person who is treated as so liable under regulation 6.

(4) For the purposes of these Regulations, the following shall be treated as included in a dwelling–

(a) subject to sub-paragraphs (b) to (d) any land (whether or not occupied by a structure) which is used for the purposes of occupying a dwelling as a home where either:–

(i) the occupier of the dwelling acquired simultaneously the right to use the land and the right to occupy the dwelling, and, in the case of a person liable to pay rent for his dwelling, he could not have occupied that dwelling without also acquiring the right to use the land; or

(ii) the occupier of the dwelling has made or is making all reasonable efforts to terminate his liability to make payments in respect of the land;

(b) where the dwelling is a caravan or mobile home, such of the land on which it stands as is used for the purposes of the dwelling;

(d) where in Scotland, the dwelling is situated on or pertains to a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1955[^f00016], the croft land on which it is situated or to which it pertains.

(5) In these Regulations, unless the context otherwise requires, a reference:–

(a) to a numbered Part is to the Part of these Regulations bearing that number;

(b) to a numbered regulation or Schedule is to the regulation in, or the Schedule to, these Regulations bearing that number;

(c) in a regulation or Schedule to a numbered paragraph is to the paragraph in that regulation or Schedule bearing that number;

(d) in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

Definition of non-dependant

3

(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2) applies, who normally resides with a claimant.

(2) This paragraph applies to–

(a) any member of the claimant’s family;

(b) if the claimant is polygamously married, any partner of his and any child or young person who is a member of his household and for whom he or one of his partners is responsible;

(c) a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 15 (membership of the same household);

(d) subject to paragraph (3), a person who jointly occupies the claimant’s dwelling;

(e) subject to paragraph (3), any person who is liable to make payments in respect of his occupation of the dwelling to the claimant or the claimant’s partner;

(f) a person who lives with the claimant in order to care for him or a partner of his and who is engaged by a charitable or voluntary body (other than a public or local authority) which makes a charge to the claimant or his partner for the services provided by that person.

(3) Excepting persons to whom paragraph (2)(a) to (c) and (f) refer, a person who normally resides with a claimant and who is a boarder or a person to whom any of sub-paragraphs (a) to (c) of regulation 7 (circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling) applies shall be a non-dependant.

(4) For the purposes of this regulation and regulation 7 (circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling) a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area within the meaning prescribed in paragraph 7 of Schedule 1.

Remunerative work

4

(1) Subject to the following provisions of this regulation, a person shall be treated for the purposes of these Regulations as engaged in remunerative work if he is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 24 hours a week, in work for which payment is made or which is done in expectation of payment.

(2) In determining the number of hours for which a person is engaged in work where his hours of work fluctuate, regard shall be had to the average of hours worked over–

(a) if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the person does no work, those periods but disregarding any other absences);

(b) in any other case, the period of 5 weeks immediately prior to the date of claim, or such other length of time as may, in the particular case, enable the person’s weekly average hours of work to be determined more accurately.

(3) Where no recognisable cycle has been established in respect of a person’s work, regard shall be had to the number of hours or, where those hours will fluctuate, the average of the hours, which he is expected to work in a week.

(4) A person shall be treated as engaged in remunerative work during any period for which he is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason of a recognised, customary or other holiday.

(5) A person on income support for more than 3 days in any benefit week shall be treated as not being in remunerative work in that week.

PART II — PROVISIONS AFFECTING ENTITLEMENT TO HOUSING BENEFIT

Circumstances in which a person is or is not to be treated as occupying a dwelling as his home

5

(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home–

(a) by himself or, if he is a member of a family, by himself and his family; or

(b) if he is polygamously married, by himself, his partners and any child or young person for whom he or any partner of his is responsible and who is a member of that same household,

and shall not be treated as occupying any other dwelling as his home.

(2) In determining whether a dwelling is the dwelling normally occupied as a person’s home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain.

(3) Where a single claimant or a lone parent is a student or is on a training course and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he occupies for the purpose of attending his course of study or, his training course, or as the case may be, the dwelling which he occupies when not attending his course, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make such payments.

(4) Where a claimant has been required to move into temporary accommodation by reason of essential repairs being carried out to the dwelling normally occupied as his home, and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he normally occupied as his home or the temporary accommodation, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make payments.

(5) Where a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only–

(a) where he has left and remains absent from the former dwelling occupied as his home through fear of violence in that dwelling or by a former member of his family and it is reasonable that housing benefit should be paid in respect of both his former dwelling and his present dwelling occupied as the home; or

(b) in the case of a married or unmarried couple or a member of a polygamous marriage, where he or one partner is a student or is on a training course and it is unavoidable that the partners should occupy two separate dwellings and reasonable that housing benefit should be paid in respect of both dwellings; or

(c) in the case where, because of the number of persons referred to in paragraph (1), they have been housed by a housing authority in two separate dwellings; or

(d) in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding four benefit weeks if his liability to make payments in respect of two dwellings is unavoidable.

(6) Where a person:–

(a) has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and

(b) had claimed housing benefit before moving in and either that claim has not yet been determined or it has been refused but a further claim has been made or treated as made within 4 weeks of the date on which the claimant moved into the new dwelling occupied as the home; and

(c) the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and–

(i) that delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family; or

(ii) the move was delayed pending the outcome of an application under Part III of the Act for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant’s family is aged 5 or under or the claimant’s applicable amount includes a premium under paragraph 9, 10, 11, 13 or 14 of Schedule 2; or

(iii) the claimant became liable to make payments in respect of the dwelling while he was a patient or in residential accommodation,he shall be treated as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.

(7) Where a person is treated by virtue of paragraph (6) as occupying a dwelling as his home in respect of the period before moving in, his claim for housing benefit shall be treated as having been made on either–

(a) in the case of a claim which has not yet been determined the date that claim was or was treated as made in accordance with regulation 72 (time and manner in which claims are to be made); or

(b) in the case of a claim for housing benefit which has been refused and a further claim was or was treated as made in accordance with Part X (claims) within 4 weeks of the date on which he moved into the dwelling, the date on which the claim was refused or was treated as made; or

whichever of those dates is the later.

(8) A person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 52 weeks only if–

(a) he intends to return to occupy the dwelling as his home; and

(b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and

(c) the period of absence is unlikely to exceed 52 weeks or, in exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of his absence), is unlikely substantially to exceed that period.

(9) In this regulation–

“patient” means a person who is undergoing medical or other treatment as an in-patient in any hospital or similar institution;

“residential accommodation” means accommodation which is provided by an establishment– under sections 21 to 24 and 26 of the National Assistance Act 1948[^f00017] (provision of accommodation); under section 21(1) of, and paragraph 1 or 2 of Schedule 8 to the National Health Service Act 1977[^f00018] (prevention, care and after-care); under section 59 of the Social Work (Scotland) Act 1968[^f00019] (provision of residential and other establishments) where board is available to the claimant; registered under Part I of the Registered Homes Act 1984[^f00020]; run by the Abbeyfield Society including all bodies corporate or incorporate which are affiliated to that Society; managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority; in Scotland, which is a home registered under section 61 of the Social Work (Scotland) Act 1968[^f00021] or is an establishment provided by a housing association registered with the Housing Corporation established by the Housing Act 1964[^f00022] which provides care equivalent to that given in residential accommodation provided under Part IV of the Social Work (Scotland) Act 1968; in premises which are a nursing home or mental nursing home within the meaning of the Registered Homes Act 1984 and which are either registered under Part II of that Act or exempt from registration under section 37 thereof (power to exempt Christian Science Homes); in any premises used or intended to be used for the reception of such persons or the provision of such nursing or services as are mentioned in any of subsections (1)(a) to (c) of section 21 or section 22(1) of the Registered Homes Act 1984 (meaning of nursing home or mental nursing home) or, in Scotland, as are mentioned in section 10(2) of the Nursing Homes Registration (Scotland) Act 1938[^f00023] (interpretation) and which are maintained or controlled by a body instituted by special Act of Parliament or incorporated by Royal Charter; or in Scotland, in premises which are a nursing home within the meaning of section 10 of the Nursing Homes Registration (Scotland) Act 1938 which are either registered under that Act or exempt from registration under section 6 or 7 thereof[^f00024] (general power to exempt homes and power to exempt Christian Science Homes); or in premises which are a private hospital within the meaning of section 12 of the Mental Health (Scotland) Act 1984[^f00025] (private hospitals), and which are registered under that Act;

“training course” means a course of training or instruction provided wholly or partly by or on behalf of or in pursuance of arrangements made with, or approved by or on behalf of, a government department or the Manpower Services Commission.

Circumstances in which a person is to be treated as liable to make payments in respect of a dwelling

6

(1) The following persons shall be treated as if they were liable to make payments in respect of a dwelling–

(a) the person who is liable to make those payments;

(b) a person who is a partner of the person to whom sub-paragraph (a) applies;

(c) a person who has to make the payments if he is to continue to live in the home because the person liable to make them is not doing so and either–

(i) he was formerly a partner of the person who is so liable, or

(ii) he is some other person whom it is reasonable to treat as liable to make the payments; and

(d) a person whose liability to make such payments is waived by his landlord as reasonable compensation in return for works actually carried out by the tenant in carrying out reasonable repairs or redecoration which the landlord would otherwise have carried out or be required to carry out but this sub-paragraph shall apply only for a maximum of 8 benefit weeks in respect of any one waiver of liability.

(2) A person shall be treated as liable to make a payment in respect of a dwelling for the whole of the period in respect of which the payment is to be made notwithstanding that the liability is discharged in whole or in part either before or during that period and, where the amount which a person is liable to pay in respect of a period is varied either during or after that period, he shall, subject to regulations 68 to 70 (dates of relevant changes of circumstances, weekly amounts and housing benefit for rent or rate free periods), be treated as liable to pay the amount as so varied during the whole of that period.

(3) Where there is no liability to pay rates in any benefit week because, exceptionally, the rating authority has failed to make a rate, but the claimant makes a payment by way of rates otherwise than to a rating authority and the amount of his rent treated as such a payment which he is liable to pay remains constant, he shall be treated as liable to make payments by way of rates.

Circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling

7

The following persons shall be treated as if they were not liable to make payments in respect of a dwelling–

(a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling and either–

(i) that person is a close relative of his or his partner, or

(ii) the tenancy or other agreement between them is other than on a commercial basis;

(b) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme except someone who was, for any period within the eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments of rent in respect of the same dwelling;

(c) a person who is a joint occupier of a dwelling and who was, at any time during the period of eight weeks prior to the creation of the joint tenancy or other agreement giving rise to the joint liability to make payments in respect of the dwelling, a non-dependant of one or more of the other joint occupiers of the dwelling, unless the appropriate authority is satisfied that the joint tenancy or other agreement was not created to take advantage of the housing benefit scheme;

(d) a person who is a member of, and is fully maintained by, a religious order.

PART III — PAYMENTS IN RESPECT OF A DWELLING

Eligible housing costs

8

(1) Subject to paragraph (2), housing benefit shall be payable in respect of the payments specified in regulations 9(1) and 10(1) (rates and rent) and a claimant’s maximum housing benefit shall be calculated under Part VIII (amount of benefit) by reference to–

(a) in the case of a rate rebate, the amount of his eligible rates determined in accordance with regulation 9(3) (rates); and

(b) in the case of a rent rebate or allowance, the amount of his eligible rent determined in accordance with regulation 10(3) (rent).

(2) Housing benefit shall not be payable in respect of the following payments–

(a) subject to paragraph (3), payments made by a person on income support whose applicable amount for that benefit includes an amount in respect of those payments; and

(b) payments in respect of accommodation provided under–

(i) sections 21 to 24 and 26 of the National Assistance Act 1948; or

(ii) section 21(1) of and paragraph 1 or 2 of Schedule 8 to the National Health Service Act 1977[^f00026] or;

(iii) in Scotland, section 59 of the Social Work (Scotland) Act 1968[^f00027] where board is available to the claimant; and

(c) payments by a person on income support who is aged under 25 and who, but for his age, would be entitled to income support calculated on the basis that he is in board and lodging accommodation.

(3) Where a person who has been awarded housing benefit in respect of a dwelling becomes entitled to income support and his applicable amount for the purpose of calculating his entitlement to that benefit includes an amount for board and lodging at that dwelling, the payments made by him in respect of that dwelling shall continue to be eligible for housing benefit for a period of four benefit weeks beginning with the benefit week after the date on which he becomes entitled to income support.

Rates

9

(1) The payments in respect of which housing benefit is payable in the form of a rate rebate are the payments by way of rates in respect of the dwelling which a person occupies as his home.

(2) Where a person is liable to make payments only of such a kind as are specified in regulation 10(1) (rent) in respect of the dwelling which he occupies as his home and which comprises part only of a rateable unit, the proportion of those payments equal to the proportion of the rates payable in respect of the rateable unit as a whole which appears to the appropriate authority to be referrable to his dwelling shall be treated as payments by way of rates for the purposes of paragraph (1).

(3) Subject to any apportionment in accordance with paragraphs (4) and (5) and to regulation 11 (restrictions on unreasonable payments), the amount of a person’s eligible rates shall be the amount of the payments by way of rates referred to in paragraph (1), or, as the case may be, (2).

(4) Where a rateable unit consists partly of residential accommodation and partly of other accommodation, only such proportion of the rates payable for that rateable unit as is referrable to the residential accommodation shall count as eligible rates for the purposes of these Regulations and in the application of this paragraph to Scotland the proportion so referrable shall be such as may be determined by an apportionment under section 45(1) of the Water (Scotland) Act 1980[^f00028] (apportionment of annual value of premises).

(5) Where more than one person is liable to make payments by way of rates in respect of a dwelling, the rates payable in respect of that dwelling shall be apportioned for the purposes of calculating the eligible rates for each such person having regard to all the circumstances, in particular the number of such persons and the proportion of rates paid by each such person.

(6) In a case to which regulation 6(3) applies (circumstances in which a person is to be treated as liable to make payments in respect of a dwelling), the claimant’s eligible rates shall be treated as being of an amount equal to his eligible rates immediately prior to the date on which the rating authority should have made a rate.

Rent

10

(1) Subject to the following provisions of this regulation, the payments in respect of which housing benefit is payable in the form of a rent rebate or allowance are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home–

(a) payments of, or by way of, rent;

(b) payments in respect of a licence or permission to occupy the dwelling;

(d) payments in respect of, or in consequence of, use and occupation of the dwelling;

(e) payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends;

(f) mooring charges payable for a houseboat;

(g) where the home is a caravan or a mobile home, payments in respect of the site on which it stands;

(h) any contribution payable by a person resident in an almshouse provided by a housing association which is either a charity of which particulars are entered in the register of charities established under section 4 of the Charities Act 1960[^f00029] (register of charities) or an exempt charity within the meaning of that Act, which is a contribution towards the cost of maintaining that association’s almshouses and essential services in them;

(i) payments under a rental purchase agreement, that is to say an agreement for the purchase of a dwelling under which the whole or part of the purchase price is to be paid in more than one instalment and the completion of the purchase is deferred until the whole or a specified part of the purchase price has been paid; and

(j) where, in Scotland, the dwelling is situated on or pertains to a croft within the meaning of section 3(1) of the Crofters (Scotland) Act 1955[^f00030], the payment in respect of the croft land.

(2) A rent rebate or, as the case may be, a rent allowance shall not be payable in respect of the following periodical payments:–

(a) payments under a long tenancy except a shared ownership tenancy granted by a housing association or a housing authority;

(b) payments under a co-ownership scheme;

(d) payments under a hire purchase, credit sale or conditional sale agreement except to the extent the conditional sale agreement is in respect of land; and

(e) payments by a Crown tenant.

(3) Subject to any apportionment in accordance with paragraphs (4) and (5) and to regulations 11 and 12 (restrictions on unreasonable payments and rent increases), the amount of a person’s eligible rent shall be the aggregate of such payments specified in paragraph (1) as he is liable to pay less–

(a) except where he is separately liable for rates or charges for water, sewerage or allied environmental services, an amount determined in accordance with paragraph (6); and

(b) where payments include service charges which are wholly or partly ineligible, an amount in respect of the ineligible charges determined in accordance with Schedule 1.

(4) Where the payments specified in paragraph (1) are payable in respect of accommodation which consists partly of residential accommodation and partly of other accommodation, only such proportion thereof as is referrable to the resid-ential accommodation shall count as eligible rent for the purposes of these Regulations.

(5) Where more than one person is liable to make payments in respect of a dwelling, the payments specified in paragraph (1) shall be apportioned for the purpose of calculating the eligible rent for each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each such person.

(6) The amount of the deduction referred to in paragraph (3) shall be–

(a) in respect of rates–

(i) if the dwelling occupied by the claimant is a single rateable unit, the amount of the rates payable in respect of the rateable unit as a whole, or

(ii) if the dwelling comprises part only of a rateable unit, the amount treated as a payment by way of rates by virtue of regulation 9(2) (rates);

(b) in respect of charges for water, sewerage or allied environmental services–

(i) except in a case to which head (iii) applies, if the dwelling occupied by the claimant is a single rateable unit, the amount of the charges,

(ii) in any other case except one to which head (iii) applies, the proportion of those charges in respect of the rateable unit of which the dwelling is part, equal to the proportion of the rates payable in respect of the rateable unit as a whole treated as payments by way of rates for which the claimant is liable under regulation 9(2) (rates), or

(iii) where the charges vary in accordance with the amount of water actually used, the amount which the appropriate authority considers to be fairly attributable to water, sewerage and allied environmental services, having regard to the actual or estimated consumption of the claimant.

(7) In this regulation and Schedule 1–

“service charges” means periodical payments for services, whether or not under the same agreement as that under which the dwelling is occupied, or whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling; and

“services” means services performed or facilities (including the use of furniture) provided for, or rights made available to, the occupier of a dwelling.

Restrictions on unreasonable payments

11

(1) Where a rent is registered in respect of a dwelling under Part IV or V of the Rent Act 1977[^f00031] or Part IV or VII of the Rent (Scotland) Act 1984[^f00032] and the rent recoverable from a claimant is limited to the rent so registered, his eligible rent determined in accordance with regulation 10 (rent) shall not exceed the rent so registered.

(2) Subject to paragraphs (3) and (4), where the appropriate authority considers–

(a) that a claimant occupies a dwelling larger than is reasonably required by him and others who also occupy that dwelling (including any non-dependants of his and any person paying rent to him) having regard in particular to suitable alternative accommodation occupied by a household of the same size; or

(b) that the rates payable for the claimant’s dwelling are unreasonably high by comparison with the rates payable in respect of suitable alternative accommodation elsewhere; or

(c) that the rent payable for his dwelling is unreasonably high by comparison with the rent payable in respect of suitable alternative accommodation elsewhere,

the authority may treat the claimant’s eligible rates, or, as the case may be, eligible rent, as reduced by such amount as it considers appropriate having regard in particular to the cost of suitable alternative accommodation elsewhere and the claimant’s maximum housing benefit shall be calculated by reference to the eligible rates or eligible rent as so reduced.

(3) If any person to whom paragraph (7) applies–

(a) is aged 60 or over; or

(b) is incapable of work for the purposes of one or more of the provisions of the Social Security Act, or Part I of the Social Security and Housing Benefits Act 1982[^f00033] or Part II of the Act; or

no deduction shall be made under paragraph (2) unless suitable cheaper alternative accommodation is available and the authority considers that, taking into account the relevant factors, it is reasonable to expect the claimant to move from his present accommodation.

(4) Without prejudice to the operation of paragraph (3), but subject to paragraph (5), where the appropriate authority is satisfied that a person to whom paragraph (7) applies was able to meet the financial commitments for his dwelling when they were entered into, no deduction shall be made under paragraph (2) during the first 13 benefit weeks of the claimant’s benefit period.

(5) Paragraph (4) shall not apply where a claimant was previously entitled to benefit in respect of a benefit period which fell wholly or partly less than 52 weeks before the commencement of his current benefit period.

(6) For the purposes of this regulation–

(a) in deciding what is suitable alternative accommodation, the appropriate authority shall take account of the nature of the alternative accommodation and the facilities provided having regard to the age and state of health of all the persons to whom paragraph (7) applies and, in particular, where a claimant’s present dwelling is occupied with security of tenure, accommodation shall not be treated as suitable alternative accommodation unless that accommodation will be occupied on terms which will afford security of tenure reasonably equivalent to that presently enjoyed by the claimant; and

(b) the relevant factors in paragraph (3) are the effects of a move to alternative accommodation on–

(i) the claimant’s prospects of retaining his employment; and

(ii) the education of any child or young person referred to in paragraph (3)(c) if such a move were to result in a change of school.

(7) This paragraph applies to the following persons–

(a) the claimant;

(b) any member of his family;

(c) if the claimant is a member of a polygamous marriage, any partners of his and any child or young person for whom he or a partner is responsible and who is a member of the same household;

(d) subject to paragraph (8), any relative of the claimant or his partner who occupies the same dwelling as the claimant, whether or not they reside with him.

(8) Paragraph (7)(d) shall only apply to a relative who has no separate right of occupation of the dwelling which would enable him to continue to occupy it even if the claimant ceased his occupation of it.

Restrictions on rent increases

12

Where a claimant’s eligible rent is increased during a benefit period, the appropriate authority may, if it considers either–

(a) that the increase is unreasonably high having regard in particular to the level of increases for suitable alternative accommodation, or

(b) in the case of an increase which takes place less than 12 months after the date of the previous increase, that the increase is unreasonable having regard to the length of time since that previous increase,

treat the eligible rent as reduced either by the full amount of the increase or, if it considers that a lesser increase was reasonable in all the circumstances, by the difference between the full amount of the increase and the increase that is reasonable having regard in particular to the level of increases for suitable alternative accommodation, and the claimant’s maximum housing benefit shall be calculated by reference to the eligible rent as so reduced.

PART IV — MEMBERSHIP OF A FAMILY

Persons of prescribed description

13

(1) Subject to paragraph (2), a person of a prescribed description for the purposes of section 20(11) of the Act as it applies to housing benefit (definition of the family) is a person aged 16 or over but under 19 who is treated as a child for the purposes of section 2 of the Child Benefit Act 1975[^f00034] (meaning of child), and in these Regulations such a person is referred to as a “young person”.

(2) Paragraph (1) shall not apply to a person who is on income support.

Circumstances in which a person is to be treated as responsible or not responsible for another

14

(1) Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person who is normally living with him.

(2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with–

(a) the person who is receiving child benefit in respect of him; or

(b) if there is no such person–

(i) where only one claim for child benefit has been made in respect of him, the person who made that claim, or

(ii) in any other case the person who has the primary responsibility for him.

(3) For the purposes of these Regulations a child or young person shall be the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.

Circumstances in which a person is to be treated as being or not being a member of the household

15

(1) Subject to paragraphs (2) to (4), the claimant and any partner and, where the claimant or his partner is treated as responsible by virtue of regulation 14 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person, shall be treated as members of the same household where any of them is absent from the dwelling occupied as his home.

(2) Paragraph (1) shall not apply to any person who is not treated as occupying the dwelling as his home because he fails to satisfy the conditions in regulation 5(8) or, as the case may be, (9) (circumstances in which a person is or is not to be treated as occupying a dwelling as his home).

(3) A child or young person shall not be treated as a member of the claimant’s household where he is–

(a) boarded out with the claimant or his partner under a relevant enactment; or

(b) boarded out with the claimant or his partner prior to adoption; or

(c) placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations 1983[^f00035] or the Adoption Agencies (Scotland) Regulations 1984[^f00036].

(4) Subject to paragraph (5), paragraph (1) shall not apply to a child or young person who is not living with the claimant and he–

(a) is in the care of a local authority under a relevant enactment; or

(b) has been boarded out with a person other than the claimant prior to adoption; or

(c) has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1984.

(5) An authority shall treat a child or young person to whom paragraph (4)(a) applies as being a member of the claimant’s household in any benefit week where–

(a) that child or young person lives with the claimant for part or all of that benefit week; and

(b) the authority considers that it is reasonable to do so taking into account the nature and frequency of that child’s or young person’s visits.

(6) In this regulation “relevant enactment” means the Army Act 1955[^f00037], the Air Force Act 1955[^f00038], the Naval Discipline Act 1957[^f00039], the Adoption Act 1958[^f00040], the Matrimonial Proceedings Children Act 1958[^f00041], the Children Act 1958[^f00042], the Social Work (Scotland) Act 1968[^f00043], the Family Law Reform Act 1969[^f00044], the Children and Young Persons Act 1969[^f00045], the Matrimonial Causes Act 1973[^f00046], the Guardianship Act 1973[^f00047], the Children Act 1975[^f00048], the Domestic Proceedings and Magistrates' Courts Act 1978[^f00049], the Adoption (Scotland) Act 1978[^f00050], the Child Care Act 1980[^f00051] and the Foster Children Act 1980[^f00052].

PART V — APPLICABLE AMOUNTS

Applicable amounts

16

Subject to regulations 17, 18, 69 and 70 (polygamous marriages, patients, calculation of weekly amounts and rent or rate-free periods), a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:–

(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2;

(b) an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family, except a child or young person whose capital, if calculated in accordance with Chapter VI of Part VI (income and capital) in like manner as for the claimant, except where otherwise provided, would exceed £3,000;

(c) if he is a member of a family of which at least one member is a child or young person, an amount determined in accordance with Part II of Schedule 2 (family premium);

(d) the amount of any premiums which may be applicable to him, determined in accordance with Parts III and IV of Schedule 2 (premiums).

Polygamous marriages

17

Subject to regulations 18, 69 and 70 (patients, calculation of weekly amounts and rent or rate-free periods), where a claimant is a member of a polygamous marriage, his weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case–

(a) the highest amount applicable to him and one of his partners determined in accordance with paragraph 1(3) of Schedule 2 as if he and that partner were a couple;

(b) an amount equal to the difference between the amounts specified in sub-paragraphs (3)(b) and (1)(c) of paragraph 1 of Schedule 2 in respect of each of his other partners;

(c) an amount determined in accordance with paragraph 2 of Schedule 2 (applicable amounts) in respect of any child or young person for whom he or a partner of his is responsible and who is a member of the same household, except a child or young person whose capital, if calculated in accordance with Chapter VI of Part VI (income and capital) in like manner as for the claimant except where otherwise provided, would exceed £3,000;

(d) if he or another partner of the polygamous marriage is responsible for a child or young person who is a member of the same household, the amount specified in Part II of Schedule 2 (family premium);

(e) the amount of any premiums which may be applicable to him determined in accordance with Parts III and IV of Schedule 2 (premiums).

Patients

18

(1) Subject to regulations 69 and 70 (calculation of weekly amounts and rent or rate-free periods), where a person has been a patient for a period of more than 6 weeks–

(a) in the case of a single claimant, his applicable amount shall be £8.25;

(b) in the case of a lone parent, his applicable amount shall be £8.25 plus any amount applicable to him under regulation 16(b) or (c) or (d) (applicable amounts) by virtue of his satisfying the condition specified in paragraphs 8 or 14 of Schedule 2;

(i) where the other member is not a patient, or has not been a patient for more than six weeks, his or, if he is not the claimant, the claimant’s applicable amount shall be the amount applicable under regulation 16 (applicable amounts) reduced by £8.25;

(ii) where the other member has also been a patient for more than six weeks, his or, as the case may be, the claimant’s applicable amount shall be £16.50 plus any amounts applicable under regulation 16(b) or (c) or (d) by virtue of his satisfying the condition specified in paragraph 14 of Schedule 2;

(d) if he is polygamously married:–

(i) where at least one member of the polygamous marriage is not a patient, or has not been a patient for more than six weeks, the applicable amount under regulation 17 (polygamous marriages) shall be reduced by £8.25 in respect of each such member who is a patient;

(ii) where all the members of the polygamous marriage have been patients for more than six weeks, the applicable amount shall be £8.25 in respect of each member plus any amounts applicable under regulation 17(c) or (d) or (e) by virtue of his satisfying the condition specified in paragraph 14 of Schedule 2.

(2) In paragraph (1), “patient” means a person (other than a person who is serving a sentence of imprisonment or detention in a youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975[^f00053].

(3) For the purposes of calculating the period of 6 weeks referred to in paragraph (1), where a person has been maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution within the meaning of that paragraph for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been so maintained for a period equal in duration to the total of those distinct periods.

PART VI — INCOME AND CAPITAL

CHAPTER I — general

Calculation of income and capital of members of claimant’s family and of a polygamous marriage

19

(1) The income and capital of a claimant’s partner and, subject to paragraph (2) and to regulation 36 (modifications in respect of children and young persons), the income of a child or young person which by virtue of section 22(5) of the Act is to be treated as income and capital of the claimant, shall be calculated or estimated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the “claimant” shall, except where the context otherwise requires, be construed for the purposes of this Part as if it were a reference to his partner or that child or young person.

(2) Regulations 29(2) and 31(2), so far as they relate to paragraphs 1 to 10 of Schedule 3 (sums to be disregarded in the calculation of earnings), and regulation 34(1) (capital treated as income) shall not apply to a child or young person.

(3) Where a claimant or the partner of a claimant is married polygamously to two or more members of his household–

(a) the claimant shall be treated as possessing capital and income belonging to each such member and the income of any child or young person who is one of that member’s family; and

(b) the income and capital of that member or, as the case may be, the income of that child or young person shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant or, as the case may be, as for any child or young person who is a member of his family.

Circumstances in which income of non-dependant is to be treated as claimant's

20

(1) Where it appears to the appropriate authority that a non-dependant and the claimant have entered into arrangements in order to take advantage of the housing benefit scheme and the non-dependant has more capital and income than the claimant, that authority shall, except where the claimant is on income support, treat the claimant as possessing capital and income belonging to that non-dependant and, in such a case, shall disregard any capital and income which the claimant does possess.

(2) Where a claimant is treated as possessing capital and income belonging to a non-dependant under paragraph (1) the capital and income of that non–dependant shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant and any reference to the “claimant” shall, except where the context otherwise requires, be construed for the purposes of this Part as if it were a reference to that non-dependant.

CHAPTER II — income

Calculation of income on a weekly basis

21

(1) Subject to regulations 26 (disregard of changes in tax, contributions etc), and 69 and 70 (calculation of weekly amounts and rent or rate free periods) for the purposes of section 20(7)(c) of the Act (conditions of entitlement to housing benefit) the income of a claimant shall be calculated on a weekly basis–

(a) by estimating the amount which is likely to be his average weekly income over the benefit period in accordance with this Chapter and Chapters III to V of this Part; and

(b) by adding to that amount the weekly income calculated under regulation 45 (calculation of tariff income from capital).

(2) For the purposes of paragraph (1) “income” includes income derived under regulations 27(3), 34 and 35 (charitable or voluntary payments, capital treated as income and notional income).

Average weekly earnings of employed earners

22

(1) Where a claimant’s income consists of earnings from employment as an employed earner his average weekly earnings shall be estimated by reference to his earnings from that employment–

(a) over a period immediately preceding the benefit week in which the claim is made or treated as made and being a period of–

(i) 5 weeks, if he is paid weekly; or

(ii) 2 months, if he is paid monthly; or

(b) whether or not sub-paragraph (a)(i) or (ii) applies, where a claimant’s earnings fluctuate, over such other period preceding the benefit week in which the claim is made or treated as made as may, in any particular case, enable his average weekly earnings over the benefit period to be estimated more accurately.

(2) Where the claimant has been in his employment for less than the period specified in paragraph (1)(a)(i) or (ii)–

(a) if he has received any earnings for the period that he has been in that employment and those earnings are likely to represent his average weekly earnings from that employment his average weekly earnings shall be estimated by reference to those earnings;

(b) in any other case, the appropriate authority shall require the claimant’s employer to furnish an estimate of the claimant’s likely weekly earnings over such period as the appropriate authority may require and the claimant’s average weekly earnings shall be estimated by reference to that estimate.

(3) Where the amount of a claimant’s earnings changes during a benefit period the appropriate authority shall estimate his average weekly earnings by reference to his likely earnings from the employment over the remainder of the benefit period.

(4) For the purposes of this regulation the claimant’s earnings shall be calculated in accordance with Chapter III of this Part.

Average weekly earnings of self-employed earners

23

(1) Where a claimant’s income consists of earnings from employment as a self-employed earner his average weekly earnings shall be estimated by reference to his earnings from that employment over such period as is appropriate in order that his average weekly earnings over the benefit period may be estimated accurately but the length of the period shall not in any case exceed 52 weeks.

(2) For the purposes of this regulation the claimant’s earnings shall be calculated in accordance with Chapter IV of this Part.

Average weekly income other than earnings

24

(1) A claimant’s income which does not consist of earnings shall, except where paragraph (2) or regulation 27(4) (weekly amount of charitable or voluntary payment) applies, be estimated over such period as is appropriate in order that his average weekly income over the benefit period may be estimated accurately but the length of the period shall not in any case exceed 52 weeks; and nothing in this paragraph shall authorise an authority to disregard any such income other than that specified in Schedule 4.

(2) The period over which any benefit under the benefit Acts[^f00054] is to be taken into account shall be the period in respect of which that benefit is payable.

(3) For the purposes of this regulation income other than earnings shall be calculated in accordance with Chapter V of this Part.

Calculation of weekly income

25

For the purposes of regulations 22 to 24 (average weekly income), where the period in respect of which a payment is made–

(a) does not exceed a week, the weekly amount shall be the amount of that payment;

(b) exceeds a week, the weekly amount shall be determined–

(i) in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii) in any other case, by dividing the amount of the payment by the number equal to the number of days in the period to which it relates and multiplying the quotient by 7.

Disregard of changes in tax, contributions etc.

26

In calculating the claimant’s income the appropriate authority may disregard any legislative change–

(a) in the basic or other rates of income tax;

(b) in the amount of any personal tax relief;

(c) in the rates of social security contributions payable under the Social Security Act or in the lower earnings limit or weekly earnings figures for Class 1 contributions under that Act;

(d) in the amount of tax payable as a result of an increase in the weekly rate of Category A, B, C or D retirement pension or any addition thereto or any graduated pension payable under that Act,

for a period not exceeding 30 benefit weeks beginning with the benefit week immediately following the date from which the change is effective.

Treatment of charitable or voluntary payments

27

(1) Any charitable or voluntary payment, other than one which is or is due to be made at regular intervals or one which is made by a person for the maintenance of any member of his family or of his former partner or of his children, made to the claimant on or after the date of claim shall be calculated in accordance with the following provisions of this regulation; and for the purposes of this regulation any such payment made to a member of the claimant’s family or to a person whose income and capital he is treated as possessing under regulation 19(3) (calculation of income and capital of members of the claimant’s family, and of a polygamous marriage) shall be treated as a payment made to the claimant and shall be disregarded in calculating the income or capital of that member or that person.

(2) The first £250, whether in aggregate or otherwise, of any such payments made in the period of 52 weeks beginning with the date on which the first payment is made shall be taken into account as capital under Chapter VI of this Part and to the extent that it is not a payment of capital shall be treated as capital.

(3) Any such payments in the period of 52 weeks in excess of £250 shall be taken into account as income under Chapter V of this Part and to the extent that it is not a payment of income shall be treated as income.

(4) The weekly amount of any charitable or voluntary payment which is to be taken into account under paragraph (3) as income shall be determined as follows–

(a) in a case where the first payment exceeds the limit of £250, the excess shall be divided by 52; and the resulting amount treated as weekly income for a period of 52 weeks beginning on the date on which that payment was made;

(b) in a case where any subsequent payment in aggregate with earlier payments first exceeds that limit, the excess shall be divided by the number equal to the number of weeks (including any part of a week) in the interval beginning with the date of that payment to the end of the period of 52 weeks; and the resulting amount treated as weekly income for each week in that interval; and

(c) any payment made after that specified in either sub-paragraph (a) or (b) shall be divided by the number equal to the number of weeks (including any part of a week) in the interval beginning with the date of that payment to the end of the period of 52 weeks; and the resulting amount treated as weekly income for each week in that interval.

(5) In the case of a claimant who continues to be in receipt of housing benefit at the end of the period of 52 weeks, the foregoing provisions of this regulation shall continue to apply thereafter with the modification that any subsequent period of 52 weeks shall begin from the date on which the first payment is made after the end of the previous period of 52 weeks.

CHAPTER III — employed earners

Earnings of employed earners

28

(1) Subject to paragraph (2), “earnings” means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes–

(a) any bonus or commission;

(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of his employment by reason of redundancy;

(c) any payment in lieu of notice or any lump sum payment intended as compensation for the loss of employment but only in so far as it represents loss of income;

(d) any holiday pay except any payable more than 4 weeks after termination or interruption of the employment;

(e) any payment by way of a retainer;

(f) any payment made by the claimant’s employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant’s employer in respect of–

(i) travelling expenses incurred by the claimant between his home and place of employment;

(ii) expenses incurred by the claimant under arrangements made for the care of a member of his family owing to the claimant’s absence from home;

(g) any award of compensation made under section 68(2) or 71(2)(a) of the Employment Protection (Consolidation) Act 1978[^f00055] (remedies and compensation for unfair dismissal);

(h) any such sum as is referred to in section 18(2) of the Social Security (Miscellaneous Provisions) Act 1977[^f00056] (certain sums to be earnings for social security purposes);

(i) any statutory sick pay under Part I of the Social Security and Housing Benefits Act 1982[^f00057] or statutory maternity pay under Part V of the Act.

(2) Earnings shall not include–

(a) any payment in kind;

(b) any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

Calculation of net earnings of employed earners

29

(1) For the purposes of regulation 22 (average weekly earnings of employed earners), the earnings of a claimant derived or likely to be derived from employment as an employed earner to be taken into account shall, subject to paragraph (2), be his net earnings.

(2) There shall be disregarded from a claimant’s net earnings, any sum, where applicable, specified in paragraphs 1 to 11 of Schedule 3.

(3) For the purposes of paragraph (1) net earnings shall, except where paragraph (4) applies, be calculated by taking into account the gross earnings of the claimant from that employment over the assessment period, less–

(a) any amount deducted from those earnings by way of–

(i) income tax;

(ii) primary Class 1 contributions under the Social Security Act[^f00058]; and

(b) one-half of any sum paid by the claimant by way of a contribution towards an occupational or personal pension scheme.

(4) Where the earnings of a claimant are estimated under paragraph (2) of regulation 22 (average weekly earnings of employed earners), his net earnings shall be calculated by taking into account those earnings over the assessment period, less–

(a) an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax in the year of assessment in which the claim was made less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief)[^f00059] as is appropriate to his circumstances but, if the assessment period is less than a year, the amount of the personal relief deductible under this sub-paragraph shall be calculated on a pro-rata basis;

(b) an amount in respect of primary Class 1 contributions payable under the Social Security Act in respect of those earnings; and

(c) one-half of any sum payable by the claimant by way of a contribution towards an occupational or personal pensions scheme.

CHAPTER IV — self-employed earners

Earnings of self-employed earners

30

“Earnings”, in the case of employment as a self-employed earner, means the gross income of the employment and shall include any allowance paid under section 2 of the Employment and Training Act 1973[^f00060] to the claimant for the purpose of assisting him in carrying on his business.

Calculation of net profit of self-employed earners

31

(1) For the purposes of regulation 23 (average weekly earnings of self-employed earners) the earnings of a claimant to be taken into account shall be–

(a) in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;

(b) in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975[^f00061], his share of the net profit derived from that employment, less–

(i) an amount in respect of income tax and of social security contributions payable under the Social Security Act calculated in accordance with regulation 32 (deduction of tax and contributions for self-employed earners); and

(ii) one-half of any qualifying premium payable.

(2) There shall be disregarded from a claimant’s net profit, any sum, where applicable, specified in paragraphs 1 to 11 of Schedule 3.

(3) For the purposes of paragraph (1)(a) the net profit of the employment shall, except where paragraph (9) applies, be calculated by taking into account the earnings of the employment over the assessment period less–

(a) subject to paragraphs (5) to (7), any expenses wholly and exclusively incurred in that period for the purposes of that employment;

(b) an amount in respect of–

(i) income tax; and

(ii) social security contributions payable under the Social Security Act,

calculated in accordance with regulation 32 (deduction of tax and contributions for self-employed earners); and

(4) For the purposes of paragraph (1)(b) the net profit of the employment shall be calculated by taking into account the earnings of the employment over the assessment period less, subject to paragraphs (5) to (7), any expenses wholly and exclusively incurred in that period for the purposes of the employment.

(5) Subject to paragraph (6), no deduction shall be made under paragraph (3)(a) or (4), in respect of–

(a) any capital expenditure;

(b) the depreciation of any capital asset;

(d) any loss incurred before the beginning of the assessment period;

(e) the repayment of capital on any loan taken out for the purposes of the employment;

(f) any expenses incurred in providing business entertainment; and

(g) any debts, except bad debts proved to be such, but this sub-paragraph shall not apply to any expenses incurred in the recovery of a debt.

(6) A deduction shall be made under paragraph (3)(a) or (4) in respect of the repayment of capital on any loan used for–

(a) the replacement in the course of business of equipment or machinery; and

(b) the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.

(7) The appropriate authority shall refuse to make a deduction in respect of any expenses under paragraph (3)(a) or (4) where it is not satisfied given the nature and the amount of the expense that it has been reasonably incurred.

(8) For the avoidance of doubt–

(a) a deduction shall not be made under paragraph (3)(a) or (4) in respect of any sum unless it has been expended for the purposes of the business;

(b) a deduction shall be made thereunder in respect of–

(i) the excess of any value added tax paid over value added tax received in the assessment period;

(ii) any income expended in the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair;

(iii) any payment of interest on a loan taken out for the purposes of the employment.

(9) Where a claimant is engaged in employment as a child minder the net profit of the employment shall be one-third of the earnings of that employment, less–

(a) an amount in respect of–

(i) income tax; and

(ii) social security contributions payable under the Social Security Act,

calculated in accordance with regulation 32 (deduction of tax and contributions for self-employed earners); and

(b) one-half of any qualifying premium payable.

(10) For the avoidance of doubt where a claimant is engaged in employment as a self-employed earner and he is also engaged in one or more other employments as a self-employed or employed earner any loss incurred in any one of his employments shall not be offset against his earnings in any other of his employments.

(11) In this regulation “qualifying premium” means any premium or other consideration payable under an annuity contract for the time being approved by the Board of Inland Revenue as having for its main object the provision for the claimant of a life annuity in old age or the provision of an annuity for his partner or for any one or more of his dependants and in respect of which relief for income tax may be given.

Deduction of tax and contributions for self-employed earners

32

(1) The amount to be deducted in respect of income tax under regulation 31(1)(b)(i), (3)(b)(i) or (9)(a)(i) (calculation of net profit of self-employed earners) shall be calculated on the basis of the amount of chargeable income and as if that income were assessable to income tax at the basic rate of tax in the year of assessment in which the claim was made less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970[^f00062] (personal relief) as is appropriate to his circumstances; but, if the assessment period is less than a year, the amount of the personal relief deductible under this paragraph shall be calculated on a pro-rata basis.

(2) The amount to be deducted in respect of social security contributions under regulation 31(1)(b)(i), (3)(b)(ii) or (9)(a)(ii) shall be the total of–

(a) the amount of Class 2 contributions payable under section 7(1) or, as the case may be, (4) of the Social Security Act[^f00063] except where the claimant’s chargeable income is less than the amount for the time being specified in section 7(5) of that Act[^f00064] (small earnings exception); and

(b) the amount of Class 4 contributions (if any) which would be payable under section 9 of that Act[^f00065] (Class 4 contributions recoverable under Tax Acts) in respect of profits or gains equal to the amount of that income.

(3) In this regulation “chargeable income” means–

(a) except where sub-paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (3)(a) or, as the case may be, (4) of regulation 31;

(b) in the case of employment as a child minder, one third of the earnings of that employment.

CHAPTER V — other income

Calculation of income other than earnings

33

(1) For the purposes of regulation 24 (average weekly income other than earnings), the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraphs (2) and (3), be his gross income and any capital treated as income under regulation 27(3) and 34 (charitable or voluntary payments and capital treated as income).

(2) There shall be disregarded from the calculation of a claimant’s gross income under paragraph (1), any sum, where applicable, specified in Schedule 4.

(3) Where the payment of any benefit under the benefit Acts is subject to any deduction by way of recovery the amount to be taken into account under paragraph (1) shall be the gross amount payable.

(4) For the avoidance of doubt there shall be included as income to be taken into account under paragraph (1) any payment to which regulation 28(2) applies (payments not earnings).

Capital treated as income

34

(1) Any capital payable by instalments which are outstanding at the date on which the claim is made or treated as made, or, at the date of any subsequent review, shall, if the aggregate of the instalments outstanding and the amount of the claimant’s capital otherwise calculated in accordance with Chapter VI exceeds £6,000, be treated as income.

(2) Any payment received under an annuity shall be treated as income.

Notional income

35

(1) A claimant shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit.

(2) Except in the case of a discretionary trust or a trust derived from a payment made in consequence of a personal injury, any income which would become available to the claimant upon application being made, but which has not been acquired by him, shall be treated as possessed by the claimant but only from the date on which it could be expected to be acquired were an application made.

(3) Any payment of income made–

(a) to a third party in respect of a member of the family (but not a member of the third party’s family) shall be treated as possessed by that member to the extent that it is used for his food, clothing, footwear, fuel, eligible rent or rates or both;

(b) to a member of the family in respect of a third party (but not in respect of another member of that family) shall be treated as possessed by that member to the extent that it is kept by him or used by or on behalf of any member of the family.

(4) Where a claimant is in receipt of any benefit (other than housing benefit) under the benefit Acts and the rate of that benefit is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter, the appropriate authority shall treat the claimant as possessing such benefit at the altered rate–

(a) in a case in which the claimant’s weekly amount of eligible rent or, as the case may be, rates falls to be calculated in accordance with regulation 69(2)(b) or, as the case may be, (3)(b) (calculation of weekly amounts), from 1st April in that year;

(b) in any other case, from the first Monday in April in that year,

to the date on which the altered rate is to take effect.

(5) Where–

(a) a claimant performs a service for another person; and

(b) that person makes no payment of earnings or pays less than that paid for a comparable employment in the area; and

(c) the appropriate authority is not satisfied that the means of that person are insufficient for him to pay or to pay more for the service,

the appropriate authority shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment; but this paragraph shall not apply to a claimant who is engaged by a charitable or voluntary body or is a volunteer if the appropriate authority is satisfied that it is reasonable for him to provide his services free of charge.

(6) Where a claimant is treated as possessing any income under any of paragraphs (1) to (4) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of that income as if a payment had actually been made and as if it were actual income which he does possess.

(7) Where a claimant is treated as possessing any earnings under paragraph (5) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of those earnings as if a payment had actually been made and as if they were actual earnings which he does possess except that paragraph (3) of regulation 29 (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account those earnings which he is treated as possessing, less–

(a) an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax in the year of assessment in which the claim was made less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief) as is appropriate to his circumstances; but, if the assessment period is less than a year the amount of the personal relief deductible under this sub-paragraph shall be calculated on a pro-rata basis;

(b) an amount in respect of primary Class 1 contributions payable under the Social Security Act in respect of those earnings; and

(c) one-half of any sum payable by the claimant by way of a contribution towards an occupational or personal pension scheme.

Modifications in respect of child and young person

36

(1) Where the income of a child or young person calculated in accordance with the foregoing provisions of this Part exceeds the amount included under Schedule 2 in the calculation of the claimant’s applicable amount for that child or young person by way of the personal allowance and disabled child premium, if any, the excess shall not be treated as income of the claimant.

(2) Where the capital of a child or young person, if calculated in accordance with Chapter VI in like manner as for the claimant, except where otherwise provided, would exceed £3,000, any income of that child or young person shall not be treated as income of the claimant.

(3) In calculating the net earnings or net profit of a child or young person there shall be disregarded any sum specified in paragraphs 13 and 14 (in addition to any sum which falls to be disregarded under paragraphs 11 and 12) of Schedule 3.

(4) Any income of a child or young person which is to be disregarded under Schedule 4 shall be disregarded in such manner as to produce the result most favourable to the claimant.

CHAPTER VI — capital

Capital limit

37

For the purposes of section 22(6) of the Act as it applies to housing benefit (no entitlement to benefit if capital exceeds prescribed amount), the prescribed amount is £6,000.

Calculation of capital

38

(1) For the purposes of Part II of the Act as it applies to housing benefit, the capital of a claimant to be taken into account shall, subject to paragraph (2), be the whole of his capital calculated in accordance with this Part and any income treated as capital under regulations 27(2) and 40 (treatment of charitable or voluntary payments and income treated as capital).

(2) There shall be disregarded from the calculation of a claimant’s capital under paragraph (1), any capital, where applicable, specified in Schedule 5.

Disregard of capital of child or young person

39

The capital of a child or young person who is a member of the claimant’s family shall not be treated as capital of the claimant.

Income treated as capital

40

(1) Any annual bounty derived from employment to which paragraph 6 of Schedule 3 applies shall be treated as capital.

(2) Any amount by way of a refund of income tax deducted from profits or emoluments chargeable to income tax under Schedule D or E shall be treated as capital.

(3) Any holiday pay which is not earnings under regulation 28(1)(d) (earnings of employed earners) shall be treated as capital.

(4) Except any income derived from capital disregarded under paragraphs 1, 2, 4, 7 or 13 of Schedule 5, any income derived from capital shall be treated as capital but only from the date it is normally due to be credited to the claimant’s account.

(5) In the case of employment as an employed earner, any advance of earnings or any loan made by the claimant’s employer shall be treated as capital.

Calculation of capital in the United Kingdom

41

Capital which a claimant possesses in the United Kingdom shall be calculated–

(a) except in a case to which sub-paragraph (b) applies, at its current market or surrender value less–

(i) where there would be expenses attributable to sale, 10 per cent; and

(ii) the amount of any incumbrance secured on it;

(b) in the case of a National Savings Certificate–

(i) if purchased from an issue the sale of which ceased before 1st July last preceding the date on which the claim is made or treated as made, or the date of any subsequent review, at the price which it would have realised on that 1st July had it been purchased on the last day of that issue;

(ii) in any other case, at its purchase price.

Calculation of capital outside the United Kingdom

42

Capital which a claimant possesses in a country outside the United Kingdom shall be calculated–

(a) in a case where there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;

(b) in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,

less, where there would be expenses attributable to sale, 10 per cent and the amount of any incumbrance secured on it.

Notional Capital

43

(1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit.

(2) Except in the case of–

(a) a discretionary trust; or

(b) a trust derived from a payment made in consequence of a personal injury; or

any capital which would become available to the claimant upon application being made, but which has not been acquired by him, shall be treated as possessed by him but only from the date on which it could be expected to be acquired were an application made.

(3) Any payment of capital made–

(a) to a third party in respect of a member of the family (but not a member of the third party’s family) shall be treated as possessed by that member to the extent that it is used for his food, clothing, footwear, fuel, eligible rent or rates or both;

(b) to a member of the family in respect of a third party (but not in respect of another member of the family) shall be treated as possessed by that member to the extent that it is kept by him or used on behalf of any member of the family.

(4) Where a claimant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, he may be treated as if he were such sole owner or partner and in such a case–

(a) the value of his holding in that company shall, notwithstanding regulation 38 (calculation of capital) be disregarded; and

(b) he shall, subject to paragraph (5), be treated as possessing an amount of capital equal to the value or, as the case may be, his share of the value of the capital of that company and the foregoing provisions of this Chapter shall apply for the purposes of calculating that amount as if it were actual capital which he does possess.

(5) For so long as the claimant undertakes activities in the course of the business of the company, the amount which he is treated as possessing under paragraph (4) shall be disregarded.

(6) Where a claimant is treated as possessing capital under any of paragraphs (1) to (3) the foregoing provisions of this Chapter shall apply for the purposes of calculating its amount as if it were actual capital which he does possess.

Capital jointly held

44

Except where a claimant possesses capital which is disregarded under regulation 43(4) (notional capital) where a claimant and one or more persons are beneficially entitled in possession to any capital asset they shall be treated as if each of them were entitled in possession to the whole beneficial interest therein in an equal share.

Calculation of tariff income from capital

45

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